1.DEFINITIONS.
(a)"Licensed Software" means any
computer program(s) supplied by
Pointwise, Inc. (PWI) to Licensee
under a valid Purchase Order or
Contract, whether in object code,
reconfigurable binary, or any other
form; video media and training aids;
and any backup or other copies,
updates, derivative works,
modifications, enhancements, and
extensions thereof.
(b)"Documentation" means user
manuals, documentation binders,
release notes, installation notes,
written utility programs and other
written or graphic materials related
to the Licensed Software and all
copies thereof.
(c)"Licensed Product(s)" means the
Licensed Software and
Documentation.
(d)"Maintenance Period" means the
first calendar year of a perpetual
license or 12 months for an annual
license.
2.LICENSE.
PWI grants to Licensee a non-
exclusive, non-transferable license to
use the Licensed Products in
accordance with the terms and
conditions set forth herein. As long
as this License is in effect, Licensee
may transfer its use of the Licensed
Products to a replacement computer
system on a temporary or permanent
basis, provided that Licensee gives
PWI written notice of such transfer.
3.TERM and FEES.
The Term of the Right to Use License
is annual or perpetual, as set forth in
the Purchase Order or Contract,
provided that the License has not
been terminated as set forth in
Section 10.
All applicable fees are payable to PWI
within thirty (30) days from Invoice
Date. Failure to pay such fees in a
timely manner is a material breach of
this License. Licensee agrees to pay
any legal or collection fees incurred
by PWI in collecting any amounts
that may be delinquent.
4.COPIES and MODIFICATIONS.
Licensee may copy the Licensed
Products in whole or in part, in
written or machine readable form for
use in understanding the Licensed
Software and for archive or backup
purposes. Licensee shall reproduce
and include PWI's trade secret or
copyright notices on and in any
copies, in any form. Licensee shall
not reverse assemble, reverse
compile or otherwise reverse
engineer the Licensed Software in
whole or in part.
The License includes the right to
reproduce the Licensed Software's
documentation exclusively for the
use of Licensee and its employees
only. All other reproduction and
distribution is strictly prohibited.
5.OWNERSHIP.
All Licensed Products and the
information they contain, any
updates and all copies of them are
PWI's or PWI's licensors' property,
and title to them remains in PWI or
such licensors. All applicable rights
in patents, copyrights or trade
secrets in the Licensed Products are
and will remain in PWI and PWI's
licensors. No title to or ownership of
the Licensed Software or the
information they contain is
transferred to Licensee. Licensee
agrees that any terms and conditions
imposed by PWI's licensor and
communicated by PWI to Licensee by
PWI, shall apply to the Licensed
Products.
6.CONFIDENTIALITY.
(a)Licensee will take all reasonable
precautions to maintain the
confidentiality of the Licensed
Products, and agrees to take all
reasonable and necessary steps to
protect the patents, trademarks,
copyrights, trade secrets and any
other forms of intellectual or
industrial property of PWI in the
Licensed Products.
(b)Licensee will not provide the
Licensed Products to any person,
other than employees of Licensee,
without PWI's prior written consent,
except during the period any such
person is on Licensee's premises with
Licensee's permission for purposes
specifically related to Licensee's use
of the Licensed Products.
7.COPYRIGHT AND PATENT
INDEMNITY.
PWI assures Licensee that, to the
best of PWI's knowledge, the
Licensed Products do not infringe
any patent, copyright, or trade
secret. In the event any legal
proceedings are brought against
Licensee claiming an infringement of
a patent, copyright, or trade secret
based on Licensee's use of the
Licensed Products, PWI agrees to
defend at PWI's own expense any
such legal proceeding relating to
such claim or claims and to hold
Licensee harmless from any damage
incurred or awarded as the result of
settlement or judgment against
Licensee, provided Licensee gives
PWI prompt written notice within
fifteen (15) days of any such claim or
the institution of any such claims
against Licensee, and further,
Licensee cooperates completely with
PWI in providing all necessary
authority, information, and
reasonable assistance to enable PWI,
at PWI's option, to settle or defend
such claims.
8.LIMITATION OF WARRANTY AND
LIABILITY.
PWI warrants that the Licensed
Products will perform substantially in
accordance with all written
specifications furnished to Licensee
by PWI if properly used. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, PWI DISCLAIMS
ALL OTHER WARRANTIES, EITHER
EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR
PURPOSE, WITH REGARD TO THE
LICENSED PRODUCTS. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT
SHALL PWI BE LIABLE TO LICENSEE
OR ANY PARTY FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES
WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, DAMAGES
FOR LOSS OF BUSINESS
RIGHT TO USE LICENSE
